320.The IACHR expressed concern over what was considered the “outdoor
recreation” area at the Pinal County Prison. The Inter-American
Commission observed that there was no “outdoor” area at that facility;
all there was a small empty space adjacent to each pod, with little
exposure to the outdoors and sunlight through a skylight near the roof
of the pod. During the IACHR’s visit, the delegation observed that two
detainees were playing an improvised game of handball in a triangular
room.

321.Both the Pinal County representative and the ICE representative
for the Detention Standards Compliance Unit insisted that the space in
question qualified as an outdoor recreation area under the detention
standards. The 2000 ICE Standard for “Recreation,”[530]
however, reads as follows: “If a facility does not have an outdoor
area, a large recreation room with exercise equipment and access to
sunlight will be provided. (This does not meet the requirement for
outdoor recreation).”[531]
The Inter-American Commission understands that this is not the only
example of inadequate “outdoor recreation.” A July 2007 GAO report
contains photographs of inside areas of two other centers that are used
as if they were “outdoor recreation” areas.[532]

322.While the Willacy center does have a real outdoor area, the
center provides few opportunities for exercise and to enjoy time
outdoors. The IACHR noted outside each pod was a vacant and enclosed
concrete area, about the size of a basketball court, surrounded by
barbed wire, with a small, covered seating area. The Willacy
representatives reported that each pod of 50 detainees was given between
one and two hours a day of recreation. The Inter-American Commission’s
observation was that it would be quite difficult for 50 people to be
able to take exercise in that space at the same time. Similarly, the
IACHR observed that during the summer, when the temperatures go as high
as 100˚F (38˚C), there would be very little shade and seating for the
detainees who wanted to spend a moment of relaxation outdoors.

323.The United States supplied the following observations in its
October 2010 response:

The expansion of
outdoor recreation opportunities and hours is an important part of the
detention reform initiative. Detainees should have the opportunity to
recreate for the most practicable amount of time possible in an
environment that supports leisure activities and outdoor sports and
exercise. Florence Service Processing center currently serves as a
model for recreation space; it has a state-of-the-art outdoor recreation
facility, with artificial turf, a re-paved running track around the
perimeter, and new workout stations. Outdoor recreation opportunities
in other facilities have also expanded, with some facilities providing
free movement access to outdoor recreation areas during daylight hours.

324.The Inter-American Commission reiterates that the State must
provide what is necessary for the physical well-being of all persons in
its custody. This obligation includes regular access to outdoor
recreation. Accordingly, the IACHR notes with satisfaction the
information provided by the United States in the sense that this issue
will be addressed as part of its detention reform initiatives.

325.The IACHR is very concerned by the heavy restrictions placed on
confidential meetings between attorney and client, and the visiting
areas for families and friends in some prisons that also house immigrant
detainees.

326.The Inter-American Commission received information indicating
that the wing that houses some 600 immigrant detainees in the Pinal
County facility does not have any area for attorney-client meetings or
for visits. Rather, the IACHR learned that attorneys meet with their
clients through videoconferencing or when the detained immigrant is
taken to the wing of the county prison where criminal inmates (some 900)
are incarcerated, where there are about two meeting booths for the 1500
detainees in the two wings of the facility. The Inter-American
Commission observed that the booths look like a teller window at a bank,
with a glass partition separating the attorney from the client and with
very little space. The IACHR observed that the space for passing
documents to the client is only wide enough for two pages. For example,
in order for a detainee to review or sign any document, he must call the
guard to bring the papers and/or pen to him. A number of attorneys who
have represented the detainees incarcerated in Pinal told the
Inter-American Commission that they would not be representing any future
detainees because, on several occasions, they had to wait for as much as
an hour to meet with their clients, and found it difficult to have an
effective attorney-client meeting in person.

327.The IACHR is deeply troubled by the fact that immigrant detainees
at Pinal are not permitted to meet with family or friends in person.
Consequently, all visits have to be by video teleconferencing. A number
of detainees expressed their reluctance about the procedure, because it
left them and their families with a sense of anguish and pain.

328.In the case of the Willacy Detention Center, the Inter-American
Commission notes that since the summer of 2009 it has had proper rooms
where attorneys can meet with their clients. It is troubling that this
change did not take place until three years after the center went into
operation. With respect to this and other problems at the center, the
staff there told the IACHR that the government built the centers very
quickly in order to meet the goal of detaining and deporting more
illegal immigrants. This has meant that the facility has been catching
up ever since to make sure that the necessary services are provided.[533]
The Inter-American Commission notes that there are still shortcomings;
for example, when attorneys meet with clients, they do not have
sufficient space to work. Also, given the size of the facility and the
frequent shortage of security personnel, attorneys commented that they
sometimes have to wait quite a while for their clients to be escorted to
the meeting.

329.The
IACHR is very disturbed by the staff’s comment to the effect that they
could only rely on the county’s goodwill when requesting improvements,
since Willacy County itself had no contractual obligation to make
improvements to the attorney-client space vis-a-vis its contract
with the private contractor.

330.As for personal visits, Willacy has a hallway of booths with
glass partitions for visiting relatives and friends. The Inter-American
Commission learned that the center only allows personal visits on
weekends, for a half hour per detainee, and no physical contact is
allowed.[534]
The IACHR observed that there are 10 booths for an average population of
1400 detainees.

331.The United States observes in its October 2010 submission that
part of the detention reform initiative, includes exploring options for
expanded family visitation. According to the United States, “ICE is
also exploring the use of video-teleconferencing to allow detainees
contact with family members who may not be able to visit the detention
facility” and “working to improve access to legal counsel and legal
materials”, including access to materials that explain state laws on
custody and family issues.

332.The State adds:

On July 23, 2010, ICE
launched the ODLS, a public, internet-based tool designed to assist
family members, attorneys, and other interested parties in locating
detained aliens in ICE custody. The creation and implementation of the
ODLS is a concrete example of ICE’s commitment to detention reform that
is both transparent and meaningful. The ODLS, located on ICE’s public
website
www.ice.gov,
provides users with information on the location of the detention
facility where a particular individual is being held, a phone number to
the facility and contact information for the ICE Enforcement and Removal
Office in the region where the facility is located. The rollout of the
ODLS also included the translation of the website, system informational
brochure, and facility fact sheet in numerous languages. Providing
language access to ICE’s systems and information to all nationalities is
an on-going goal of the agency.

333.The Inter-American Commission considers that these are all
valuable and relevant steps in the right direction. However, the State
must take the measures necessary to correct any other obstacles that
might impair proper representation of the immigrants in their
proceedings and, most especially, to eliminate restrictions on visits by
family and friends. The IACHR believes these unwarranted and
disproportionate restrictions are unacceptable even for criminal
detention, and are especially onerous in the case of immigration
detention.

334.The Inter-American Commission is troubled by the limited legal
resources and the equally limited access to those resources that it
observed at the centers it visited. At Pinal, each group of four pods,
housing close to 200 detained immigrants, was given a small room that
served as a “law library.” One “law library” that the IACHR observed had
one computer with English-language material from the Lexis-Nexis system,
one typewriter, one table with three chairs, and a carrel containing
decisions, in English, of the Board of Immigration Appeals (BIA) up to
1998. The Pinal team told the delegation that detainees could only go
to the law library upon request and for a maximum of one hour. The
libraries did not have permanent staff to assist detainees with the use
of the computer or the legal materials.

335.The “law library” that the Inter-American Commission saw at the
Willacy Detention Center was only a slight improvement over the one at
the Pinal Center. It, too, was inadequate and consisted of a room with
a row of eight computers equipped with Lexis-Nexis, and a small
collection of books on immigration law in English. The “law library”
was hardly commensurate with the number of detainees that this facility
houses (1400). The Willacy team said that each pod of 50 detainees has
the opportunity to go to the library for one or two hours a week. The
IACHR noticed that one person was in the library to assist with
logistical questions, but not to assist with the legal materials.

336.The Inter-American Commission is troubled by the fact that many
immigrants have to represent themselves during their immigration
proceedings, which in itself constitutes a considerable disadvantage.
Many detained immigrants do not have much education and have a limited
knowledge of English. This makes it virtually impossible for them to
search for and understand legal materials on their own. Most of the
detainees whom the IACHR interviewed said they did not have any idea
what was happening with their cases. And so, access to adequate and
sufficient legal resources becomes all the more important and can have
significant due process implications.

337.As mentioned in the press release following its visits to Arizona
and Texas,[535]
the Inter-American Commission is deeply troubled by the use of
confinement (“administrative segregation” or “disciplinary segregation”)[536]
in the case of vulnerable immigration detainees, including members of
the LGBT community, religious minorities and mentally challenged
detainees. Using confinement to protect a threatened population amounts
to a punitive measure. Equally troubling is the extent to which this
measure is used as a disciplinary tool.

338.The State observed in its October 2010 response that “a brief
period of segregation for disciplinary reasons is sometimes necessary
for detainees whose behavior does not comply with facility rules in
order to provide detainees in the general population a safe and orderly
living environment”. According to the information submitted by the
State, “a detainee may be placed in disciplinary segregation only by
order of the Institutional Disciplinary Panel (IDP), or its equivalent,
after a hearing in which the detainee has been found to have committed a
prohibited act”. The United States also points out that the maximum
sanction is “30 days in disciplinary segregation per violation with a
review every seven days” and that “it is very clearly articulated in the
standards that placement in a special management unit is based on the
amount of supervision required to control a detainee and safeguard the
detainee, other detainees and facility staff”.

339.The IACHR takes note of this information supplied by the State,
but insists that the profound psychological and physical impact of
confinement is well documented.[537]
During its visits, the Inter-American Commission had an opportunity to
speak with a number of detainees in administrative segregation, who were
there because they feared for their safety if they remained among the
general population. In the Florence SPC, the IACHR observed that 4 of
the detainees in administrative segregation had been there for nearly
150 days. The Inter-American Commission learned that the immigration
detainees held in segregation are released from their cells for just one
hour a day for exercise, but have no meaningful contact with other human
beings. One detainee with whom the IACHR spoke said that the delegate
was the first visitor he had had in 60 days of confinement.

340.The Inter-American Commission has received numerous pieces of
alarming testimony from immigrant detainees with mental illnesses, whose
conditions deteriorated with the time spent in segregation.[538]
According to the detention standards on mental health, mentally ill
detainees should be housed in a therapeutic space or released to receive
proper treatment.[539]

341.In addition to segregation, various immigrant detainees have
asserted that prison officials place entire sections or cellblocks under
lockdown for minor incidents, as when detainees are being too loud.[540]
The IACHR learned that “lockdown” means that the detainees are confined
to their cells for protracted periods of time, during which they are not
allowed to receive visits, not even from their attorneys. A December
2006 report by the DHS OIG pointed out that lockdown is also used on an
individual basis.[541]

342.Finally, the Inter-American Commission is troubled by the
numerous reports, from present and former detainees, recounting the
verbal abuse to which security personnel at the centers subjected them,
in addition to their threats of confinement or transfer.[542]
A number of detainees told the IACHR that the security personnel treated
them like criminals and that the constant verbal abuse had a very
negative psychological effect.

343.The Inter-American Commission has received disturbing information
to the effect that ICE’s grievance procedure has been systematically
mismanaged. The IACHR spoke with numerous detainees and former
detainees who filed complaints, often several times over the same issue,
and yet never received a reply. Other detainees were afraid that if
they complained they would face reprisals from the detention center’s
staff.

344.A report that the GAO did in July 2007 concluded that the ICE
grievance database was not sufficiently reliable for audit purposes.[543]
The report nevertheless revealed that of 1700 grievances reported in the
OIG database, the OIG investigated 173 complaints between FY2003 and
FY2006, and referred the others to other units of the DHS.[544]
Neither the report nor the DHS’ comments on the report explain what
happened to the other 1,527 grievances that detainees filed.[545]
Furthermore, and consistent with the situation described in the section
on “Telephone Access,” the GAO found that the OIG’s free grievance line
was blocked in 12 of 17 detention centers visited.[546]
Finally, the GAO reported that of the 409 grievances brought to the
attention of the DHS Office of Professional Responsibility (OPR), that
office answered only 98.[547]

345.In its October 2010 observations, the State points out that “the
grievance procedures in PBNDS 2010 Standard have been substantially
improved” and that “ICE also has developed a detainee handbook written
in clear, plain language”. This handbook conveys that detainees are
afforded certain protections and rights, including the ability to
grieve. The United States informs that the new grievance standard will
ensure that the rights of detainees are respected, including due
process, with the ability to process a grievance quickly; translation
and interpreter services so a detainee can understand and communicate
with staff; and aids or services to ensure effective communication
between a detainee and facility staff if there is any impediment in that
respect.

346.The Inter-American Commission welcomes the information supplied
by the State on the improvements in the grievance procedure. However,
considering that the ICE detention standards are not enforceable and
that the attorneys and other independent observers have very little
access to ICE detention centers, the IACHR feels compelled to express
its concern over the failings of the grievance system.

13. Some reforms recently introduced or
proposed for the future to the detention conditions of immigrant
detainees

347.On
August 6, 2009, DHS announced that it intended to reform the current
decentralized immigration detention system, which relies heavily on
contracted bed space in state and local prisons
that were
built as jails and prisons to confine pre-trial and sentenced felons,
and therefore are not suited to the specific needs of immigration
detention.

348.
Accordingly, DHS announced that it intended to consolidate immigrant
detainees in “fewer locations, closer to major cities with access to
courts, attorneys, and under conditions that more consistently meet
federal detention standards.”[548]
In its effort to create a “truly civil detention system,” DHS is
exploring the possibility of converting hotels and nursing homes into
immigration detention centers for non-criminal, non-violent migrant
detainees.[549]In addition, DHS is planning to create two new immigration
detention facilities, which are intended to reflect DHS’s reforms toward
a fully civil detention system.[550]

349.The
United States informs that in order to reform ICE’s detention system,
its ICE
Office of Detention Policy and Planning (“ODPP”) surveyed each of the immigration detention
facilities, met with stakeholders in regional community roundtables, and
engaged trade and business stakeholders. As explained by the State,
this inventory of facilities allowed ICE to better understand the
detention system and areas of possible improvement.

350.DHS
likewise plans to establish a risk assessment tool for classification of
migrant detainees which it states will be used to place migrant
detainees in an appropriate detention environment, including identifying
migrants suitable for ATD programs.[551]
Because of the significant cost-effectiveness of ATD programs,
DHS is planning to expand ATD programs nationwide.[552]DHS announced that the new risk assessment tool for custody
determinations will also factor in the needs of vulnerable populations,
such as asylum seekers, families, and the elderly.[553]

351.The
reforms were described by the United States in its observations the the
IACHR draft report:

ICE is committed to
devising and implementing a new detainee intake process to improve the
consistency and transparency of ICE’s custody and release decisions.
Indeed, ICE is developing a new Risk Assessment and Classification
Worksheet, referred to as a “risk assessment tool.” The risk assessment
tool contains objective criteria to guide decision-making regarding
whether or not an alien should be detained or released; the alien’s
custody classification level, if detained; and the alien’s level of
community supervision (to include an ICE ATD program), if released.

Using the tool,
immigration officers will be more likely to identify any special
vulnerabilities that may affect custody determinations. In fact, the
risk assessment tool includes the following special vulnerabilities the
Commission report had recommended be taken into consideration:
disability, advanced age, pregnancy, nursing, sole caretaking
responsibilities, mental health issues, or victimization, including
aliens who may be eligible for relief related under the Violence Against
Women Act (VAWA), as victims of crime (U visa), or as victims of human
trafficking (T visa).

ICE is also developing
training for our officers to identify vulnerable populations and has
consulted with the DHS’ Office for Civil Rights and Civil Liberties
(CRCL) and NGOs on special training topics. In addition, CRCL has
provided specialized training to a corps of new detention managers that
included civil rights considerations in the treatment of asylum seekers
and recognizing victims of trafficking. The training also covered the
special needs of women in detention and mental health issues that our
facilities are often called upon to address.

352.
Further, the State refers to the 2010 Performance-Based National
Detention Standards (PBNDS) which will supersede the earlier
Performance-Based National Standards that were issued in September
2008. In this regard, the United States clarifies that the 2008 PBNDS
are the standards cited by the IACHR in its draft report, as the basis
for criticism of the lack of accountability for providing ICE detainees
with safe and humane conditions of detention. The State asserts that
“the new 2010 standards, developed in close consultation with the
agency’s advisory groups and with DHS CRCL, have been drafted to address
many of the criticisms or alleged shortcomings of the earlier standards
cited by the Commission”. The United States adds:

The 2010 standards
will be more tailored to the unique needs of ICE’s detained population,
as they maximize access to counsel, visitation, religious practices, and
recreation, while improving the agency’s prevention and response to
sexual abuse or assault that may occur in detention facilities and
strengthening standards for quality medical, mental health, and dental
care.

Although the
Commission report urges ICE to regulate the application of its detention
standards, the Department of Homeland Security has determined that
implementing the 2010 PBNDS, which are performance-based standards,
through internal policy publication rather than through a rulemaking, is
the best way to ensure appropriate detention conditions for persons in
detention. First, the 2010 PBNDS identify specific outcomes and
expected practices to be achieved for each standard. In focusing on
expected outcomes and identifying clear practices and objectives, the
PBNDS enable the agency to measure specific outcomes over time and
evaluate the progress each service provider achieves in meeting the
defined service criteria. In addition, the agency has in place and
continues to develop strong measures for accomplishing detention
oversight and for expediting remediation and modification if standards’
requirements are not met.

The steps ICE has
taken to enhance monitoring of conditions in detention centers and to
ensure compliance with the new standards, as further detailed in the
next section of this response, provides the agency the necessary
framework for enforcing the standards. On the other hand, overly
stringent rulemaking could impede the agency’s ability to expeditiously
respond to changed circumstances, emergency situations, and crises to
protect the health, safety, and welfare of detained aliens, agency
personnel and contractors, and to ensure compliance with the standards.
Moreover, ICE policy is, like regulations, binding upon the agency and
its partners.

353.In
announcing the proposed reforms, however, DHS did reiterate that it
intended to continue immigration detention on a “large scale.”[554]
ICE Assistant Secretary for Immigration and Customs Enforcement John
Morton said the following: “This is not about whether or not we detain
people, this is about how we detain them.”[555]

354.The
Inter-American Commission recognizes that these preliminary proposals to
transform immigration detention into a civil detention system are an
important step forward in enhancing recognition of migrant detainees’
human rights. The response of the United States contains specific
reference to the vulnerabilities the IACHR recommended to be taken into
consideration, and also to other training programs in place for its
officers, all of which are steps in the rights direction. However, as
mentioned in earlier sections, it must be reiterated here that a system
that starts from a presumption of detention does not comport with the
State’s obligation to protect the fundamental right to personal liberty,
recognized in Article I of the American Declaration. It is important to
again make the point that based on the information supplied by DHS, only
a small percentage of immigration detainees committed violent crimes[556]
and that between FY2007 and FY2009, approximately 67% of those
immigrants detained by ICE had no criminal record at all.[557]

355.The
Inter-American Commission concludes that many of these immigrant
detainees should not be detained at all or more appropriately should be
placed in an ATD program.
ICE’s risk
assessment tool should involve a diverse range of options—from release,
bond, reporting requirements, monitoring, and GPS bracelets to home
detention or civil detention—and each immigrant detainee should be
placed in the least restrictive environment possible. The
IACHR notes that its finding implies a substantial reduction in
detention levels and a diversion of those resources to more appropriate
means to ensure that immigrants report for immigration proceedings. This
will inevitably have a positive impact on the detention conditions of
those persons that truly have to be incarcerated. The Inter-American
Commission is encouraged by ICE’s announcement that it will expand its
ATD programs nationwide and urges the State to implement a robust and
comprehensive ATD program.

356.The
IACHR welcomes the government’s acknowledgement that immigrant detainees
are being housed in facilities that are inappropriate for civil
detention and in locations that create significant obstacles for
immigrant detainees to obtain effective legal representation. To the
extent that civil detention is necessary, the Inter-American Commission
concurs with the government’s conclusions that detention facilities need
to be closer to urban centers, or where there is better access to legal
services and detainees’ families, and where more effective ICE oversight
is facilitated.

357.
Further, the Inter-American Commission welcomes the government’s
recognition that its current performance-based immigration detention
standards closely resemble criminal detention standards and thus are
inappropriate for civil detainees. In this regard, the Inter-American
Commission takes note of the State’s response regarding the imminent
entry into force of the 2010 PBNDS, but still considers that reform
would be most effective by enacting rules to guide internal policy.
Such rules could be adopted allowing for the necessary flexibility to
provide for extreme, special or emergency situations. The IACHR hopes
that under the 2010 PNDBS adequate accountability mechanisms will be
applied effectively.

358.The IACHR, however, observes that neither this recognition, nor
the new PNDBS as described in the State’s response, will result in a
civil immigration detention system. Recognizing that
developing a civil detention system is a long-term objective, in autumn
2009 DHS also announced that it would take some near-term action to
regain control and accountability over the current U.S. immigration
detention system.[558]First, ICE announced that it sought to centralize all
detention contracts under ICE headquarters’ supervision.[559]As discussed earlier, ICE has conceded that only 80 of the
more than 300 active detention contracts are being supervised by ICE
headquarters.[560]

359.In the
interim, ICE pledges that it “will aggressively monitor and enforce
contract performance in order to ensure contractors comply with terms
and conditions—especially those related to conditions of confinement.”[561]
ICE asserts that it will pursue all available means to remedy
contracting entities’ poor performance under the detention contract,
including termination of contracts.[562]

360.In
addition, ICE announced that it would hire and train 23 additional
federal employees to strengthen day-to-day oversight of the facilities
that ICE affirms house over 80 percent of migrant detainees.[563]ICE plans also to implement a medical classification system
“to support unique medical or mental health needs.”[564]
It also intends to accelerate its efforts to provide an on-line locator
system for friends, families, and attorneys to better locate detainees
within the detention system.[565]

361.While
the Inter-American Commission takes note of these government efforts to
include accountability and oversight standards into the current
detention system, which is currently decentralized and to a large extent
privatized, the IACHR is deeply concerned that these efforts will not do
enough to address the human rights issues in existing detention
centers. As was examined earlier, ICE does not have mechanisms in place
to ensure compliance with the detention standards in the facilities
operated under IGSAs and in contract detention facilities (CDFs).

362.The
Inter-American Commission recognizes that the additional daily federal
oversight will help ensure adequate detention conditions for the
immigrants. However, the IACHR remains concerned that the direct
federal oversight and accountability at ICE-contract centers falls short
given the detention system’s size and complexity.

363.The Inter-American Commission welcomes the DHS’ proposal to
establish a new classification system in order to follow-up and monitor
detainees who have specific medical and mental needs. However, the DHS’
proposal does not specify which needed reforms will be introduced to
ensure timely and quality medical care for detainees, beyond emergency
care.

364.Finally, the IACHR is pleased with ICE’s decision to accelerate
the creation of an online detainee search engine that enables attorneys,
family and friends to locate those who are within the ICE detention
system. However, the proposed reform does not address the specific
concerns
having to do with the high rates of detainee transfers within the system
and the collateral human rights problems these transfers cause with
respect to detainees’ ability to receive adequate due process and their
right to a family life.

365.In
addition to adult detention, DHS also detains migrant families and some
unaccompanied minors. Currently, migrant families are detained at one
facility—the Berks Facility in Leesport, Pennsylvania with an 84-bed
capacity.[566]
In August 2009, DHS announced that it was converting the
512-bed T. Don Hutto facility in Taylor, Texas, which had housed
families, into an all female detention facility.[567]ICE officials told the Inter-American Commission that they
did not currently foresee the need to expand family detention, as ICE
has adopted a policy of taking families out of mandatory detention and
either releasing them or placing them into an alternatives to detention
program.[568]

366.The IACHR welcomes the State’s effort to reduce its reliance on
detention of immigrant families and use of the expedited removal
process. However, it is concerned that ICE does not have enforceable
regulations that codify the current informal policies that drive
decisions on the subject of family detention.

367.With regard to families that are still in detention, the
Inter-American Commission observes that like
adult detention, ICE has issued Family Detention Standards that
establish the conditions under which families are to be detained.[569]These, too,
are not legally enforceable standards. However, because family
detention includes detention of minors, the federal court settlement in
the case of Flores v. Meese, which established legally
enforceable minimum conditions of care for minors in the immigration
system, is applicable (hereinafter the “Flores settlement”).[570]

368.The
IACHR appreciates ICE’s decision to discontinue use of the T. Don Hutto
facility for the detention of families. As the Inter-American
Commission indicated in the press release[571]
it issued after its visit, conditions there had improved over the
descriptions that predated the signing of the ACLU Settlement in August
2007.[572]
However, the IACHR is concerned that the practice of detaining immigrant
families continues with no extraordinary reasons to justify it.
Whatever the case, because of the terrible psychological impact that
detention can have, the Inter-American Commission considers that when a
family with children has to be detained, it ought to be transferred to
the custody of the ORR, an office that is more experienced in addressing
children’s needs. Furthermore, every effort must be made to ensure that
the period of detention is as brief as possible.

369.The IACHR is deeply disturbed by the reports received concerning
immigrants who have lost custody of their U.S.-born children while a
mother and/or father was in detention.[573]A January 2009
DHS OIG report confirmed that if a U.S. citizen child is identified by
CBP or ICE with an apprehended undocumented parent, that child is
released to the parent’s designated custodian or to state child
protective services.[574]
The Inter-American Commission was informed that under the federal
Adoption and Safe Families Act a parent loses custody of his or her
child if the child is in state protective custody for 15 out of the
previous 22 months.[575]
A detained parent has no means to participate in state protective
custody proceedings and the IACHR has learned that state protective
custody phone numbers are not incorporated into the pro bono
phone service.[576]
The Inter-American Commission understands that ICE has guidelines to try
to place sole caregivers into Alternatives to Detention programs. The
IACHR urges the State to rigorously implement those guidelines.

370.With
regard to detained parents that may retain custody through immigration
proceedings, the Inter-American Commission is alarmed to learn that many
are not consulted or heard with respect to custody determinations for
their U.S. citizen children in the event that they are ordered deported
from the United States. The IACHR, therefore, also urges the State to
give meaningful consideration to the wishes of a parent ordered deported
when it examines the question of what constitutes the “best interests”
of that parent’s U.S. citizen child.

371.Under the 2002 Homeland Security Act (HSA), custody of
unaccompanied minors has been legally transferred into the Office of
Refugee Resettlement (ORR) although, as will be explained, some still
remain in ICE custody.[577]
There are a number of handbooks and standards for the care of
unaccompanied children. Still, it was the Flores settlement that
established legally enforceable standards for their treatment.[578]

372.The
Inter-American Commission learned that CBP apprehends approximately
90,000 unaccompanied children (“UAC”) annually along the southern United
States border. Approximately 8,300 of those children are transferred
into ORR.[579]
The rest, the IACHR understands, are Mexican unaccompanied children who
are immediately repatriated to their country.[580] From its
visits and other reports, the Inter-American Commission has learned that
approximately 60 percent of children placed in ORR custody
are ultimately reunited with a parent, relative or sponsor in the United
States.[581]

373.The
IACHR was generally very satisfied with the conditions of care provided
for unaccompanied children at the two facilities it visited. The
Inter-American Commission has received reports that in general the
conditions of care for unaccompanied children have significantly
improved under ORR.[582]The IACHR sees many new safeguards enacted under the 2008
Trafficking Victims Protection and Reauthorization Act (“TVPRA”) and
urges the State to ensure that all its measures are fully implemented.[583]

374.The
Inter-American Commission is, however, concerned that many shelters for
unaccompanied children face challenges in recruiting and retaining
qualified medical, mental health, social work, and other professional
staff due to their often rural locations. Moreover, the IACHR is very
concerned that ORR has not fully established an effective, confidential
grievance and monitoring system.[584]
The Inter-American Commission has learned that this situation has led to
the closing of a number of UAC facilities over the past few years and to
lawsuits alleging physical and sexual abuse of children.[585]

375.The
IACHR is troubled by reports of the inadequate and at times abusive
treatment of unaccompanied children in the short-term custody of the
U.S. Customs and Border Protection (“CBP”) prior to transfer to the ORR.[586]
While the CBP or DHS custody is supposed to be no longer than 72 hours,[587]the
Inter-American Commission has learned that many of the CBP stations are
not equipped to provide the most basic necessities, such as food, water,
and sleeping accommodations.[588]
This is particularly concerning given the fact that a significant
percentage of the persons that CBP apprehends at the border have been
exposed to desert conditions for multiple days.[589]

376.The
IACHR was also disturbed by reports that ICE continues to retain custody
over certain unaccompanied minors that should be transferred to the ORR.[590]It has been
reported to the Inter-American Commission that this is due to the use of
unreliable dental exams to determine UAC age, which sometimes
overestimate a child’s age, and because ICE sometimes retains custody of
UAC with criminal convictions in the United States by designating them
as “accompanied” because they have parents or relatives in the United
States who refuse to come forward.[591]

377.In
addition to the human rights concerns with regards to detention
conditions, detention of immigrants also has a significant impact on
detainees’ chances of putting on an adequate defense and filing claims
for relief. As a result, the quality of due process in immigration
proceedings is affected.

378.The
IACHR observes the significant disparity in access to legal
representation for detained immigrants. According to government
statistics, in FY2008 approximately 40% of non-detained immigrants were
represented in their immigration proceedings, whereas just 16% of
detained immigrants were represented by counsel.[592]The lack of
legal counsel, the Inter-American Commission observes, has a profound
impact on the chances of relief. The Constitution Project reports that
just 3% of detained, unrepresented asylum seekers were granted relief.[593] By
contrast, a November 2009 New York City Bar Justice Center
report concluded that 39% of immigrant detainees it interviewed at the
Varick Federal Detention Facility had potentially meritorious
immigration claims for relief.[594]

379.The IACHR has identified the main reasons why these figures on
legal representation are so low. First, the majority
of the immigration detention population is housed in facilities in rural
locations, which creates significant obstacles for pro bono
representation. Human Rights First reports that 4 of the 6 largest
immigration detention facilities are 50 or more miles from a major urban
center.[595]
During its visits, the Inter-American Commission observed that near
Florence, Arizona, there were 5 immigration detention facilities, with
an ADP of 2,718 immigrant detainees in FY2009.[596]
These were in practice served by one small pro bono legal service
provider. Similarly, in the Rio Grande Valley in South Texas the IACHR
observed that ICE housed in FY2009 an ADP of 3,891 immigrant detainees
in four large detention facilities where there were only a handful of
pro bono and immigration attorneys.[597]These nine
facilities alone housed approximately 20% of ICE’s daily immigration
detention population in FY2009.[598]

380.Second,
the obstacles to representing detained immigrants[599]
greatly shrink the attorney pool and restrict the number of clients each
attorney can represent. The Inter-American Commission has received a
number of reports indicating that pro bono legal providers find
it very difficult to convince private attorneys to represent detained
immigrants because of the additional time commitment in representing
such persons.For those
attorneys who do agree to represent detained immigrants, the IACHR
received multiple reports that they often have difficulty getting into
the detention center,[600]
a problem that is compounded by the fact that they spend hours traveling
to and from their client’s detention center. Many attorneys reported
that meeting with a detained client can at a minimum take a half-day of
work, often more.

381.Even if
detained immigrants do obtain legal representation, the Inter-American
Commission observes that detention continues to impact their ability to
present claims for relief. For example, the IACHR understands that to
prove a claim for asylum, asylum seekers often need to gather numerous
affidavits confirming the various elements of their claim and many times
need to undergo an independent medical and psychological exam to prove
persecution.[601]
It is difficult to gather this type of evidence while detained. As a
consequence, the Inter-American Commission observes for example that, in
FY2003, a non-detained, represented asylum seeker was twice as likely to
be granted protection as a detained, represented asylum seeker.[602]

382.The United States also addresses the issue of the right to legal
counsel in its observations to the draft of this report, stating that
“ICE understands and appreciates the Commission’s concerns regarding the
detention of aliens in ICE custody in rural locations”. The State
further indicates that “access to counsel is a key component of ICE’s
detention reform” and it informs that the federal immigration agency “is
working to secure detention space that is located near to the cities or
towns where people are most frequently arrested”, which will allow to it
detain people near the residences of their family or attorneys. In the
observations submitted to the Inter-American Commission, the State
further says:

As a result, we have
begun to consolidate the number of detention facilities in which we
detain aliens in ICE custody -from more than 300 to approximately 250
facilities, several of which were more rural facilities- and we expect
additional reductions in the number of our detention facilities in the
near future. In addition, the agency is also looking into opening
larger facilities in urban areas including opening large facilities to
meet consistent detention needs in the Northeast and California.
Finally, we are in the process of revising our current detention
standards and preparing policy initiatives that we expect will, in
practice, limit the frequency with which ICE transfers its detainees, so
that they can remain close to their family and/or counsel.

For those individuals
who are unable to obtain representation, ICE’s National Detention
Standards and 2008 PBNDS require that the agency’s detention facilities
ensure that an alien has access to immigration courts, counsel (where
possible and at no expense to the government), and comprehensive legal
materials. In accordance with the requirements of these standards,
aliens detained in ICE custody—regardless of their geographic
location—should be provided with access to law libraries, names and
contact information for pro bono counsel, confidential access to
attorneys, and access to computerized legal databases or law libraries,
among other resources.

Some facilities have
made arrangements with local legal service organizations, such as The
Florence Project, which provides free legal services to individuals
detained in ICE custody in Arizona and seeks to educate aliens
concerning ways to defend removal charges and seek relief from removal.
ICE appreciates and supports the mission and role of nonprofit legal
service organizations like the Florence Project and for several years
has provided access to the facility and its detainees for the
organization. ICE also partners robustly with DOJ to provide access to
the facilities for their legal orientation programs (LOP). To that end,
ICE fully supports DOJ’s expansion of LOP programs in additional
facilities.

383.The
IACHR acknowledges these efforts as a step in the right direction toward
compliance with the international obligations set forth in the American
Declaration. The Inter-American Commission also highlights the positive
initiatives by the State to reach unrepresented detained immigrants
through its Legal Orientation Program (“LOP”).[603]The LOP is a government-funded program that sponsors local
legal service providers to give legal advice to detained immigrants. The
LOP partner organizations provide immigration legal orientations through
group immigration overview presentations, person question and answer
periods after group presentations, group workshops, and case referrals
to pro bono attorneys.[604]

384.As of
March 2010, LOP was operating in 25 detention facilities across the
United States, including the most populated detention facilities.[605]
It has been reported to the Inter-American Commission that attorneys
funded under the LOP are only permitted to spend approximately 25% of
their work hours in direct representation of clients.
The Vera
Institute reports that in FY2006 the LOP reached 25,500 detainees out of
the 283,115 detained (9% of the detention population).[606]
In its May 2008 report, the Vera Institute noted that the expansion of
immigration detention has outpaced the expansion of funding for the LOP,
with the result that LOP services continue to reach a shrinking
percentage of the immigration detention population.[607]
While no substitute for legal representation, the IACHR notes that the
LOP has given detained immigrants a basic understanding of their
immigration proceedings.[608]The Inter-American Commission would therefore urge the
State to increase the funding and expand the reach of the Legal
Orientation Program, as an important tool to improve the due process
received in immigration proceedings.

385.The
IACHR is concerned by reports that show a significant rise over the past
few years in the annual volume of Stipulated Orders of Removal. Under a
Stipulated Order of Removal, the Inter-American Commission learned, an
immigrant admits that he or she is in the country illegally, waives the
right to immigration proceedings, and agrees to the applicable mandatory
bars to reentering the United States.[609]The IACHR has
learned that many times a Stipulated Order of Removal is confused with
“Voluntary Departure,” which carries no bars to reentry into the United
States.[610]
Based on government data obtained through an FOIA request, the number of
annual Stipulated Orders of Removal jumped from 5,481 in FY2004 to
31,554 in FY2007.[611]

386.The
Inter-American Commission is particularly troubled by the demographics
of those detained and the peculiar concentration of stipulated orders of
removal in a select few detention facilities. The Stanford Immigrants’
Rights Clinic reports that 95% of those who signed Stipulated Orders of
Removal between 1999 and 2007 were not represented by counsel and 93%
had no criminal record.[612]Accordingly,
immigration advocates posit that it is likely that at least a percentage
of these immigrants that signed stipulated orders of removal would have
a claim to remain in the United States if they had had the opportunity
to speak with legal representation.[613]
The Stanford report further notes that nearly half of Stipulated Orders
of Removal were signed at three detention facilities, with nearly 20% at
the Eloy Detention Center in Arizona.[614]

387.With respect to the IACHR’s concern regarding unrepresented
aliens not understanding their rights, the United States explains that
the issue is addressed in the regulations and in the Executive Office of
Immigration Review’s procedural memoranda. These provisions express
that “[i]f the alien is unrepresented, the Immigration Judge must
determine that the alien’s waiver is voluntary, knowing, and
intelligent” and that “the stipulated request and required waivers shall
be signed on behalf of the government and by the alien…”. The State
adds that “the standard stipulation form advises the alien that by
signing it, they may be barred from returning to the United States for
up to 20 years or even permanently barred”.

388.The
IACHR appreciates this explanation, and considers that the safeguards
are important, but considers that its concern remains in the sense that
at least some of those apprehended immigrants are signing Stipulated
Orders of Removal without understanding the difference between a
stipulated order of removal and a voluntary departure in terms of their
consequences. The Inter-American Commission is also worried about the
possibility that the immigrants are being subjected to pressure from
arresting officers.[615]

389.During
the IACHR’s visits, a number of detainees complained that ICE had issued
them incomplete “Notices to Appear” for their immigration proceedings.
The Inter-American Commission notes that a “Notice to Appear” (“NTA”) is
the charging document, which includes the charges against the person and
the time and place for a court hearing.[616]Under federal
regulations, ICE initiates removal proceedings against an individual by
filing an NTA with the immigration court.[617]ICE is under
no legal obligation to file the NTA in the jurisdiction where the
noncitizen was apprehended and the immigration court in the jurisdiction
of apprehension does not have jurisdiction over a case until an NTA is
filed.[618]Thus, ICE can choose the jurisdiction in which to initiate
proceedings. Moreover, the IACHR learned that there is no legal deadline
by which ICE must file with the immigration court.[619]

390.During
its visits, the Inter-American Commission reviewed a number of
detainees’ NTAs and observed that all the NTAs included the alleged
immigration violations. However they failed to include the time and
place for their court hearings. One group of detainees reported that
they had been apprehended in Los Angeles two weeks earlier and
subsequently transferred to Arizona without receiving notification of
when and where they would be permitted to challenge their detention
before an immigration judge. The detainees reported that they had tried
multiple times to reach the ICE officer responsible for their cases but
had yet to receive a response. NGOs and attorneys report that
immigrants are frequently detained for days, weeks, and sometimes over a
month before being issued a completed NTA.[620]

391.
Immigration attorneys report that it is a common practice for ICE to
delay the filing of an NTA, often to provide it the opportunity to
expeditiously transfer persons to detention facilities thousands of
miles away from the point of apprehension. With respect to this
specific issue, the United States clarifies that it is not the
policy of the immigration authorities to delay the issuance of an NTA to
facilitate a transfer but rather that “ICE policy dictates that a
determination whether to charge an alien shall be made within 48 hours
of an alien’s arrest and that the NTA shall be served upon a detained
alien within 72 hours”. The Inter-American Commission appreciates the
clarification.

392.On the
other hand, the October 2009 report of Dr. Schriro acknowledged
significant detention space shortages in California, the Mid-Atlantic,
and Northeastern states, while having surplus space in states in the
south and along the U.S.-Mexico border.[621]A number of attorneys from Pennsylvania reported to the
IACHR that they had entered into representation agreements with detained
immigrants and petitioned the local immigration court for a bond
hearing, only to be informed by the immigration judge that the court
could not determine whether it had jurisdiction over the person or the
case because ICE had not filed the NTA.[622]
Subsequently, the attorneys would learn that their clients had been
transferred to Texas where ICE filed the NTA.[623]After submitting complaints to ICE’s regional field office,
the attorneys learned that ICE was systematically transporting immigrant
detainees from York, Pennsylvania to Texas and other distant detention
facilities.[624]

393.The
Inter-American Commission received information about the use of “air
transportation hub” protocols[625]
to transfer immigrant detainees significant distances from the point of
apprehension, where many immigrants have their family in the United
States, support networks, and possibly an attorney. Moreover, given the
dearth of pro bono and immigration attorneys near the facilities
where these detainees are transferred, the “air transportation hub
protocol” transfers and similar transfers have the effect of severely
limiting access to legal representation for these immigrant detainees.

394.Related
to the issue of the NTAs, the IACHR is alarmed by the high frequency of
detainee transfers within the U.S. immigration detention system, many
times outside the jurisdiction where the immigrant was apprehended.
According to ICE data obtained by TRAC, in FY2008 over 50% of immigrant
detainees were transferred at least once and 24% were transferred
multiple times.[626]
Under U.S. law, an immigrant detainee does not have the right to
immigration proceedings in the jurisdiction of apprehension.[627]The ICE data demonstrates that, as suggested by Dr.
Schriro’s report,[628]
the highest transfer rates are to states and facilities where there is
ample detention space but few pro bono and immigration attorneys.[629]

395.The
Inter-American Commission observes that the decision to transfer is
within the jurisdiction of ICE; opportunities to appeal the ICE decision
to an immigration judge are few.[630]Under the national detention standards, ICE is supposed to
take into consideration whether a detainee is represented by counsel
prior to making a decision to transfer a detainee.[631]
A November 2009 DHS OIG report, however, found that detention officers
did not consistently determine whether a detainee had legal
representation or scheduled court proceedings prior to transferring said
detainee.[632]

396.The
IACHR observes that transfers have a profound impact on the quality of
due process for immigrant detainees. First, many immigrants subject to
transfers are apprehended in the interior of the United States, which
means that many have families and friends living in the United States.
Detainees and immigration advocates have told the Inter-American
Commission that these community connections offer significant financial,
logistical, and psychological support for detained immigrants that
challenge the immigration charges against them.[633]

397.Second,
many of these transfers are to detention facilities located where there
are few legal service providers.[634]A December 2009 Human Rights Watch report found that the
highest rates of transfers were to Texas and Louisiana, the two states
with the country’s lowest ratios of immigration attorneys to immigration
detainees.[635] While the IACHR is aware that an out-of-jurisdiction attorney
can still represent a transferred immigrant detainee, the Inter-American
Commission believes the additional obstacles would greatly affect the
quality of representation.

398.Third,
the IACHR considers that all the evidence necessary for a bond hearing
and the underlying immigration claims are located in the district of
apprehension, making effective presentation difficult. In deciding the
amount of a bond, an immigration judge weighs a person’s flight risk in
part by evidence such as community ties, family relationships, and
possible employment.[636]
If a transferred immigrant detainee has no way of offering witnesses in person,
then he or she faces additional challenges to obtain a reasonable bond
amount and be released for the duration of his or her immigration
proceedings.

399.Fourth,
the Inter-American Commission observes that the immigration law in each
U.S. federal circuit can vary significantly.[637]
The information received indicates that the highest rates of immigrant
transfers are into the federal court of appeals for the Fifth Circuit
(Louisiana, Mississippi, and Texas),[638]
which reportedly has very low grant rates of immigration relief.[639]

400.
Finally, the IACHR is concerned by a February 2009 report indicating
that ICE does not have a uniform method of ensuring that detention
facilities are consistently transferring medical records with detainees.[640]
The Inter-American Commission has been told that at times, detainees are
not transferred with their complete medical records, leading to
disruptions in care.[641]

401.With respect to these considerations, the United States explains
that “ICE has spent the last several months evaluating best and current
practices nationwide with respect to issues affecting detainee
transfers” and that based on its findings “the agency is currently
drafting a transfer policy that we expect will limit the frequency of
detainee transfers nationwide with a goal of keeping detained aliens
near their family and counsel and address many of these concerns,
including mandating a timeline by which agents/officers must file
Notices to Appear with the immigration court”. The State informs that
it hopes to develop “a national transfer policy which meets at least
some of the needs of all interested parties, including the individual in
our custody and his/her counsel(if any)”, even if “there are times when
transferring a detainee is in the best interests of the individual”.
The State asserts:

Transferring a
detainee is not used as a punitive measure, nor will it be under the new
policy. To the contrary, ICE appreciates the significant benefit that
staying in a facility near family members and attorneys can have on an
individual detainee. Therefore, ICE will make detainee transfer
determinations after thoroughly taking account of all information
currently available to the agency.

402.The Inter-American Commission values the information supplied by
the State and will continue to monitor the situation to verify the
practical application of these positive measures and policies.

5. Concerns with the use of video
conferencing for credible fear interviews and merits hearings

403.With
expanding immigration detention and the use of remote facilities, the
IACHR is deeply concerned with the increasing reliance on video
conferencing for immigration proceedings.[642]

404.The
United States provided the following observations in its October 2010
submission to the IACHR:

Video conferencing is
an important tool in ensuring the efficient functioning of immigration
proceedings which Congress specifically authorized for immigration
proceedings. See INA § 240(b)(2)(A)(iii); 8 U.S.C. 1229a(b)(2)(A)(iii).
Without video conferencing, proceedings would take longer to complete
for several reasons, including, in some instances, the fact that the
agency may be required to rely more heavily on detainee transfers to
ensure court appearances, and, as a result, detention time would be
prolonged as, for example, the time between court dates is extended.
One of the uses for video conferencing is to allow immigration
proceedings to move forward while criminal aliens are incarcerated and
therefore not available to attend immigration proceedings. In addition,
allowing video conferencing can provide a forum for distant witnesses
(who would otherwise be unavailable) to testify on behalf of an alien
and therefore serves to improve the quality and quantity of admissible
evidence.

405.The
Inter-American Commission observes that in U.S. federal criminal
proceedings video conferencing can only be used for initial appearances
and arraignments.[643]Yet, the IACHR has learned that the U.S. immigration courts
are using video conferencing for hearings on the merits.[644]For example, Human Rights First reports that in FY2007 the
U.S. asylum office used video conferencing to conduct 60% of its
credible fear interviews.[645]

406.During
its visits, the Inter-American Commission had the opportunity to twice
observe immigration proceedings being conducted remotely via video
conferencing. The IACHR delegation noted how disconnected the detainee
at the detention facility seemed from the judge and the proceedings in
the court room. The Inter-American Commission is deeply concerned that
this disconnect may inhibit immigrant detainees from presenting
effective testimony and prevent the immigration judge from making
accurate credibility evaluations on important factors such as demeanor
and body language.[646]
The IACHR notes that video conferencing diminishes the quality of a
detainee’s legal representation, as an attorney must decide whether to
be with the client at the detention facility to assist the client or in
the courtroom with the immigration judge and DHS attorney.[647]Finally, the Inter-American Commission has received
information indicating that video conferencing creates additional
obstacles for complete and accurate interpretation, greatly reducing
detainees’ ability to understand and participate effectively in their
proceedings.[648]

407.The
IACHR takes note of a 2008 analysis published in the Georgetown
Immigration Law Journal, which found that based on U.S. immigration
court statistics in FY2005 and FY2006 asylum seekers who had their
merits hearing via video conferencing were half as likely to be granted
relief.[649]

408.Finally, it is very troubling that this mechanism is used in
proceedings involving unaccompanied children[650]
and persons with mental illness,[651]
where the due process impact is considerably greater.

409.
Considering the complexity of immigration proceedings, the
Inter-American Commission is deeply concerned that State-funded legal
representation is not provided to unaccompanied children. A February
2009 Women’s Refugee Commission report estimated that approximately 60%
of unaccompanied children do not have legal representation in their
immigration proceedings.[652]
The IACHR welcomes the State’s effort to fill that void through its
Legal Orientation Program, and the efforts by non-profit organizations
like Kids In Need of Defense (KIND).[653]
The Inter-American Commission also recognizes that the State has made
asylum protection more available through the Special
Immigrant Juvenile Status. However, the IACHR urges the State to
provide the means necessary so that all unaccompanied children have
legal representation during immigration proceedings.

410.As indicated earlier, the
Inter-American Commission recognizes that many additional legal
protections have been granted to unaccompanied children under the
Trafficking Victims Protection and Reauthorization Act of 2008 (“TVPRA”).[654]
The IACHR would like to place particular emphasis on the requirement to
screen all unaccompanied children coming from Mexico and Canada to
identify potential victims of trafficking or asylum seekers. The
Inter-American Commission received some reports from immigration
attorneys to the effect that the language of the protocol developed by
ICE and the CBP to fulfill this legal requirement was not effective in
identifying potential victims.

411.The
IACHR is likewise troubled that State-funded legal representation is not
provided to immigrant detainees with mental disabilities. Given the
Inter-American Commission’s observations with respect to the
inappropriate and deleterious care provided to ICE detainees with mental
illnesses, proper legal representation is urgently needed. Moreover, as
in the case of unaccompanied minors, the IACHR does not understand how a
person with a mental disability or mental illness could defend himself
properly and effectively without being represented by counsel in the
immigration proceedings.

412.The
Inter-American Commission, moreover, has learned that U.S. immigration
courts have no established practice for immigrants with mental
disabilities. Under section 240(b)(3) of the INA, the Attorney General
is required to establish regulations “to protect the rights and
privileges” of immigrants with mental disabilities throughout their
immigration proceedings. However, as of the date of this report, the
Attorney General has not fulfilled that obligation.[655]
The IACHR underscores the fact that a person’s ability to understand or
explain his or her interests in any legal proceeding is essential to
ensuring due process. The Inter-American Commission further observes
that the lack of any guidance for immigration judges as to how to
proceed in cases of immigrants with mental disabilities has often led
to delays in those proceedings and has left the immigrant with a mental
disability languishing and his or her condition deteriorating as a
result.[656]

413.The
IACHR observes that even when immigration courts deem an individual
incompetent to represent his or herself, a current ambiguity in
immigration regulations regarding the appointment of a representative
can lead to a fundamentally unfair result. The current regulation
states:

When it is
impracticable for the respondent to be present at the hearing because of
mental incompetency, the attorney, legal representative, legal guardian,
near relative, or friend who was served with a copy of the notice to
appear shall be permitted to appear on behalf of the respondent. If such
a person cannot reasonably be found or fails or refuses to appear, the
custodian of the respondent shall be requested to appear on behalf of
the respondent.[657]

414.The Inter-American Commission, however, notes that the
“custodian” of a detainee with a mental disability is ICE.[658]
Thus, the regulation creates a violation of the immigrant’s right of
defense, since the very entity that is trying to deport the person is
appointed, in some cases, to represent his or her interests. The IACHR
urges the State to ensure that persons with mental disabilities have
independent legal counsel. The State must develop an effective program
of representation for detained immigrants with mental disabilities.

[534]
The staff of the facility said that if a visitor came from outside
the city, arrangements could be made to schedule the visit for other
days of the week, and that the visit could be extended to an hour.

[536]
ICE draws a distinction between “administrative segregation” and
“disciplinary segregation,” although the IACHR does not notice much
difference between them.

[537]
A 2006 report cited a psychological study that found that since the
1970s no study done of involuntary confinement for more than 10 days
has failed to document negative psychiatric symptoms in patients.
This same report also mentioned one of the largest nationwide
studies, which found that two out of every three prison suicides
were by detainees in segregation units. See, Vera Institute
of Justice, A Report of the
Commission on Safety and Abuse in America’s Prisons, Confronting Confinement (June 2006), available at:
http://www.prisoncommission.org/pdfs/Confronting_Confinement.pdf.

[538]See
American University International Human Rights Law Clinic, American
University Disability Rights Law Clinic, and the CAIR Coalition,
Documents for the Working Meeting during the 134th
Session of the Commission, Invisible Migrants: Mental Illness and
the U.S. Immigration System (March 2009) (on file with the
Commission); the Commission’s Working Meeting with immigration
attorneys and advocates from the University of Pennsylvania School
of Law (January 23, 2009) (recording in the Commission’s custody);
see also Florida Immigrant Advocacy Center, Dying for
Decent Care: Bad Medicine for Immigration Custody (February
2009), available at:
http://www.fiacfla.org/reports/DyingForDecentCare.pdf.

[545]
GAO, Telephone Access Problems, supra, pp. 35, 40-42.
The IACHR observes that many detainee complaints are submitted and
addressed at each individual facility and may not make it into DHS’s
databases. The Inter-American Commission notes the 2010 report of
the New York Civil Liberties Union (NYCLU) which found that 21% of
the grievances filed by detainees at the Varick federal detention
center went unresolved. See, New York Civil Liberties Union,
Voices from Varick: Detainee Grievances at New York City’s Only
Federal Immigration Detention Facility,
p. 1 (2010), available at:
http://www.nyclu.org/files/publications/Varick_Report_final.pdf.

[556]
Only 11% of the 51% of immigrant detainees with “aggravated
felonies,” as that term is understood under U.S. immigration law,
committed violent crimes. DHS, Dr. Dora Schriro, Immigration
Detention Overview and Recommendations, supra, p. 6.

[563]
ICE has presented this proposal in two different forms, so the exact
breadth of federal oversight is not clear. On August 6, 2009, ICE
announced that it would recruit 23 new ICE detention managers to
provide oversight at 23 “significant” facilities, where it reported
40% of immigrant detainees are housed. See ICE, “Fact Sheet:
2009 Immigration Detention Reforms,” (Aug. 6, 2009), available
at:
http://www.ice.gov/pi/news/factsheets/2009_immigration_detention_reforms.htm.In its October 6, 2009 announcement, DHS announced that ICE
would add 23 oversight employees, bringing ICE’s direct supervision
staff to over 50 officials. Presumably, the 23 new ICE employees
will be stationed at facilities other than those supervised by the
current staff, because the October 6th ICE Fact Sheet
states that there will now be federal oversight at facilities where
80 percent of immigrant detainees are housed. DHS, “Fact Sheet: ICE
Detention Reform: Principles and Next Steps” (Oct. 6, 2009),
available at
http://www.dhs.gov/xlibrary/assets/press_ice_detention_reform_fact_sheet.pdf.
It should be noted that ICE’s 80 percent figure likely is a daily
snapshot figure. That is to say, the 23 additional employees will
provide oversight at the most populous facilities, which represent
approximately 80 percent of the detention population on any given
day, not 80 percent of the facilities ICE uses to house immigrant
detainees. Therefore, this enhanced federal oversight will reach a
fraction of the facilities used to house immigrant detainees. Given
the high number of transfers, many detainees spend time at multiple
facilities, often spending time at a facility close to the point of
apprehension before being transferred to a larger facility. See
Human Rights Watch, Locked Up Far Away: The Transfer of
Immigrants to Remote Detention Centers in the United States,
(Dec. 2009), available at:
http://www.hrw.org/sites/default/files/reports/us1209web.pdf;
TRAC, Huge Increases in Transfers of ICE Detainees, (Dec. 2009),
available at:
http://trac.syr.edu/immigration/reports/220/; DHS, Dr.
Dora Schriro, supra, pp. 6-10.

[568]
ICE officials told the IACHR that, as part of its policy, ICE has
been placing families apprehended at or near the border in regular
removal proceedings under section 240 of the INA, rather than
expedited removal. The few families that are still in the expedited
removal process owing to special circumstances are still being
detained at the Berk Center until they have passed a “credible fear”
interview. In such cases, once the credible fear interview has been
passed, the vast majority of families are released from detention
and placed in the hands of community organizations that sponsor
them. Between the August 6, 2009 announcement and late September
2009, ICE reported to the Commission that it had released close to
100 families and that it had placed approximately 6 families in ATD
programs. The ICE officials emphasized that of the families
released only 5% have been reported as absconded. ICE officials
told the Commission that they did not believe that new space had to
be built to detain families, beyond what ICE already has at the Berk
facility (with 84 beds). According to ICE, since the announcement
the 60 spaces needed for family detention has held constant.

See Commission
briefing on detention visits with ICE officials, ICE headquarters
(Oct. 2, 2009). Presumably, this development indicates that ICE does
not intend to move forward with its May 2008 solicitation for three
additional family detention facilities. See L.A. Times,
“Immigration Agency Plans New Family Detention Centers” (May 18,
2008), available at:
http://articles.latimes.com/2008/may/18/nation/na-detention18.

[573]See
Women’s Refugee Commission & FIAC, “The Separation of Women From
Children and the Lack of Child Protection Services,” Briefing Papers
for the thematic hearing “Due process problems in the application of
policies on immigrant detention and deportation in the United
States,” 133rd Session (Oct. 28, 2008) (on file with
IACHR).

[575]See
Women’s Refugee Commission & FIAC, “The Separation of Women From
Children and the Lack of Child Protection Services,” Briefing Papers
for the thematic hearing “Due process problems in the application of
policies on immigrant detention and deportation in the United
States,” 133rd Session (Oct. 28, 2008) (on file with
IACHR).

[577]
A number of activists have reported that ICE keeps custody of some
unaccompanied minors to get around the HAS. Sometimes, ICE will
keep an unaccompanied minor in custody if he or she is charged with
a criminal offense, is regarded as a threat to national security or
is technically regarded as “accompanied” even though the parents
have not sought custody.

[584]See
Women’s Refugee Commission & Orrick, Herrington & Sutcliffe LLP,
supra, pp. 27-34. However, the staff at both unaccompanied
shelters that the Commission visited and their ORR field specialists
stated that there is strong communication between the facilities and
ORR with respect to grievances and other concerns at the facilities.

[595]See, e.g., DHS, Dr. Dora
Schriro, supra, pp. 6-9;Human Rights First, U.S.
Detention of Asylum Seekers: Seeking Protection, Finding Prison,
pp. 55-62 (April 2009), available at:
http://www.humanrightsfirst.org/pdf/090429-RP-hrf-asylum-detention-report.pdf.Human Rights First notes that one of the other two
mega-detention facilities, Otero County Processing Center (ADP 863),
has only one pro bono organization within 22 miles, which
also serves the immigrant detention population at the El Paso
Service Processing Center (ADP 783).

[596]
The five facilities in or near Florence, Arizona are Florence ICE
Service Processing Center, the Pinal County Jail, the Eloy Detention
Center, the Florence Correctional Center, and the Central Arizona
Detention Center. See ICE, FOIA Reading Room, Detention
Facility Statistics, “Average Daily Population (ADP) Fiscal Year
2009,” available at:
http://www.ice.gov/doclib/foia/dfs/avgdailypop_fy09.pdf.

[597]
The four facilities in the Rio Grande Valley are the South Texas
Detention Complex, the Willacy Detention Center, the Port Isabel ICE
Service Processing Center, and the Laredo ICE Service Processing
Center. See ICE, FOIA Reading Room, Detention Facility
Statistics, “Average Daily Population (ADP) Fiscal Year 2009,”
available at:
http://www.ice.gov/doclib/foia/dfs/avgdailypop_fy09.pdf.

[599]
For example, all attorney-client meetings must occur at the
detention facility. Private attorneys face additional obstacles to
maintain communication with their detained clients because they are
unable to make calls to the immigrant detainees and the latter have
difficulty communicating with a private attorney because the only
free calls are to the pro bono legal service organizations.
Furthermore, attorneys have to take on even more responsibilities
when it comes to gathering evidence.

[600]
For example, immigration attorneys have reported that some detention
facilities require that the attorneys present a notice of
representation before they can meet with a detainee, even if the
meeting is for the initial interview. Some facilities have
established pre-approval requirements for the attorneys and have
required that attorneys be members of the local bar association,
even though this is not a requirement for practicing before a
federal immigration court.

[601]
The Commission observes that many other immigration claims are
document intensive. See Florence Immigrant & Refugee Rights
Project, “Written Testimony of Kara Hartzler, Esq. to the U.S. House
of Representatives Subcommittee on Immigration,” pp. 5-6 (dated Feb.
13, 2008), available at:
http://judiciary.house.gov/hearings/pdf/Hartzler080213.pdf.

[615]
During its visit to Arizona, the IACHR interviewed two persons who
had been civilly arrested by local 287(g) law enforcement partners.
Both persons alleged that they were pressured to sign papers without
receiving an explanation of their contents or the opportunity to
read them first. Moreover, one reported that other persons in the
same holding cell had signed papers that they thought were
“Voluntary Departures” but were in fact agreements to testify
against the human smugglers that brought them into the United
States. The audio of the interviews is on file with the IACHR

[618]Maldonado-Cruz v. US, 883 F.2d 788, 790 (9th Cir. 1989) (“The
Attorney General has the authority to transport aliens out of the
circuit in which they were apprehended.”). See also Sinclair v.
Atty. Gen. of U.S., 198 Fed.Appx. 218, n.3 (3d Cir. 2006) (The
statutes grant authority to the Attorney General to detain aliens
pending decisions on removal. . . . Further, the place of detention
is left to the discretion of the Attorney General.”);
Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1256 (4th Cir.1995)
("The INS necessarily has the authority to determine the location of
detention of an alien in deportation proceedings ... and therefore,
to transfer aliens from one detention center to another."); Sasso
v. Milhollan, 735 F.Supp. 1045, 1046 (S.D.Fla.1990) (holding
that the Attorney General has discretion over location of
detention).

[623]
The IACHR notes that when it visited the Willacy detention center,
immigration advocates commented that many immigrant detainees at
Willacy and the other detention facilities in the area were
originally apprehended in New York and other states in the
Northeast.

[625]Idem. The
IACHR notes that a portion of this agreement was highlighted in a
November 2009 DHS OIG report as a “best practice,” however the
report fails to address the agreement with respect to immigrant
detainees from outside the Philadelphia Area of Responsibility.
See DHS OIG, Immigration and Customs Enforcement Policies and
Procedures Related to Detainee Transfers, OIG-10-13, p. 4 (Nov.
2009), available at:
http://trac.syr.edu/immigration/library/P4225.pdf.

[627]See Maldonado-Cruz v. US, 883 F.2d 788, 790 (9th Cir. 1989)(“The
Attorney General has the authority to transport aliens out of the
circuit in which they were apprehended.”); Sinclair v. Atty. Gen.
of U.S., 198 Fed.Appx. 218, n.3 (3d Cir. 2006) (The statutes
grant authority to the Attorney General to detain aliens pending
decisions on removal. . . . Further, the place of detention is left
to the discretion of the Attorney General.”);
Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1256 (4th Cir.1995)
("The INS necessarily has the authority to determine the location of
detention of an alien in deportation proceedings ... and therefore,
to transfer aliens from one detention center to another."); Sasso
v. Milhollan, 735 F.Supp. 1045, 1046 (S.D.Fla.1990) (holding
that the Attorney General has discretion over location of
detention).

[632]
DHS OIG, Immigration and Customs Enforcement’s Tracking and
Transfers of Detainees, OIG-09-41, p. 2 (March 2009),
available at:
http://trac.syr.edu/immigration/library/P3676.pdf. The
IACHR further notes that under the national detention standards, it
is ICE’s responsibility to contact a detainee’s legal representation
in the event of a transfer. Nevertheless, the DHS OIG reports that
the ICE officer it interviewed viewed it as the responsibility of
the transferred detainee to contact his or her attorney after being
transferred. Compare ICE, Operation Manual ICE Performance
Based National Detention Standards, “Transfers,” supra, p. 3
with DHS OIG, OIG-09-41, supra, pp. 7-8.

[650]
United States Department of Justice, EOIR, “Operating Policies and
Procedures Memorandum 07-01: Guidelines for Immigration Court Cases
Involving Unaccompanied Alien Children,” pp. 5-6 (May 22, 2007),
available at:
http://www.justice.gov/eoir/efoia/ocij/oppm07/07-01.pdf.
“... when handling cases involving unaccompanied alien child
respondents, if under ordinary circumstances the hearing would be
conducted by video conference, immigration judges should determine
if particular facts are present in the case to warrant an exception
from the usual practice.”

[651]
The IACHR spoke with a number of immigration attorneys who have
represented immigrants with mental illness or a mental disorder.
These attorneys said that hearings via videoconferencing posed
considerable difficulties in such cases, as their clients were
visibly upset and paranoid, constantly ducking off camera.

[653]
The Vera Institute reports that where its LOP partner organizations
are located, it estimates that 75% of unaccompanied minors who are
in ORR custody throughout their immigration proceedings are
represented. See Women’s Refugee Commission & Orrick,
Herrington & Sutcliffe LLP, supra, fn. 168. For
information regarding the KIND organization see
http://www.supportkind.org/.